Do Your Social Media Policies Run Afoul of the First Amendment?

Freedom of speech takes center stage in a policy debate about social media.

Social media policies that target student athletes are popping up around the country this year. From California to Connecticut, these policies are stirring up controversy, and they could end up costing schools and universities millions of dollars in civil litigation.

Incidents where student athletes have bullied, hazed and sexually assaulted others have prompted a number of school districts to create social media policies to try to curtail this type of behavior. At the university level, prominent student athletes have shared images and posts on social media that violate NCAA rules or cast their teams in a bad light. In both cases, schools and universities have found themselves under fire for not doing something to stop or prevent this behavior.

But parents and students are upset that these policies target student athletes and say their First Amendment rights are being violated. Lawyers and the American Civil Liberties Union warn that education institutions are crossing legal boundaries. Some legislators also disagree with how schools are trying to control students' free speech.

A number of social media policies have fueled strong letters from the ACLU and new laws in some states. Both the letters and another lawyer say the policies run afoul of the First Amendment.

The problem with social media policies

Social media policies and practices should not violate the First or Fourth Amendment of the U.S. Constitution, said Bradley S. Shear, a lawyer who blogs about legal issues surrounding social media and advises state policymakers on social media legislation. The First Amendment protects freedom of expression from government interference, while the Fourth Amendment protects the people from unreasonable searches and seizures.

While this may seem like a no-brainer, some lawyers say that a number of policies are in direct conflict with these amendments.

"The problem is schools in general are reactive, and because they're being reactive, they're making a lot of mistakes, and the mistakes they're making are creating tremendous legal liability issues," Shear said.

For example, Torrington High School in Connecticut created a draft student athlete handbook and agreement (pages 22-26) that went before the board of education on August 21. These policies came about after incidents earlier this year when four football players raped two 13-year-old girls in one of the player's apartments. After the girls reported the sexual assault to police, other student athletes and students called them "hoes" and "whores" on social media, The Register Citizen reports.

The board of education referred the agreement to the school improvement committee. And in the meantime, 2013 Torrington alumni who formed a Commission on Student Rights asked the American Civil Liberties Union to step in.

On Sept. 9, the ACLU of Connecticut wrote a letter to Superintendent Cheryl F. Kloczko that said the school district would violate the First Amendment if it passed the policy. The letter cited a number of the offending phrases from the policy:

The following are specific examples of the draft policy's unconstitutional invitation to censor student speech: athletes must "accept and respect the decisions of the coaches to be in the best interests of the team and THS"; must "[d]iscuss any issues with [their] coach in private"; must not display "inappropriate" messages, nor use "offensive language" nor "belittle any coaches, teammates, official (sic) and opposing players/teams," on social media; and must not engage in "behavior which casts an adverse reflection on our athletic program and/or school.''

The first offense results in a minimum two-week suspension from the team, while a second offense means the student cannot be on the team for the rest of the season.

This draft policy could open the school district up to civil rights litigation, the ACLU said in the letter. It referenced a similar policy in California's Lodi Unified School District that was suspended in August and ultimately watered down substantially in September. That policy targeted student athletes and participants in other extracurricular activities.

The ACLU of Northern California and the Student Press Law Center sent a letter to the trustees of the school district in August, saying, "While the Policy may be a well-intentioned effort to discourage bullying, it sweeps far too broadly and impermissibly has the Government acting as a 24-hour a day censor of student speech."

What makes these policies tricky is that the word "reasonable" is interpreted differently in each community. What may work for California may not work for Iowa, and vice versa. And every academic institution needs to figure out what reasonable means in their community, Shear said.

Lawmakers take social media matters into their own hands

Legislators have already decided what's reasonable in many states because they're fed up with schools and universities violating students' constitutional rights, Shear said. Starting in 2012, state legislatures passed bills that forbade employers and academic institutions from asking for social media passwords.

Both Michigan and Illinois address K-12, higher education institutions and employers in their bills, while laws in other states just deal with higher education institutions and employers. In August, Illinois Gov. Pat Quinn approved the Right to Privacy in the School Setting Act, which makes it unlawful for postsecondary institutions to require student social media passwords. It also requires Illinois schools to notify parents and students that they may request a password when they have reasonable cause to believe that student social media accounts contain evidence of rule or policy violations.

The act will force Northwestern University to change its social media policy for student athletes by January 1. The university's current policy requires student athletes to provide coaching staff or members of the Athletic Department with their social media log-in information.

"Putting up a huge wall saying, 'Look, we have a zero tolerance policy,' — that's not our country," Shear said. "If you want to live in a country that has that, then move to a totalitarian country."